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29 November 2011

Repudiation: Torture

A week ago, Mother Jones reported that Senator Kelly Ayotte of New Hampshire has written an amendment for the Defense Bill that would have the United States using torture techniques.

The amendment, which purports to authorize "lawful interrogation methods," actually rescinds Obama's 2009 executive order banning torture. It directs the secretary of defense, attorney general and director of national intelligence to adopt a "classified annex" to the Army Field Manual, complete with a list of interrogation methods that could be used by the inter-agency High Value Interrogation Group (HIG).

This is a bad idea for several reasons. First is that what we are currently doing is working according to the military and intelligence officials charged with protecting the United States.

Ayotte attempted to prod Defense Secretary Leon Panetta during his June confirmation hearings into suggesting there was something inadequate about the HIG's methods (which don't involve torture), Panetta argued "It's working pretty well." In July, John Dempsey, the chairman of the Joint Chiefs of Staff, expressed pride in having helped craft the Army Field Manual standards, and said they reflected "the nexus of the importance of gaining intelligence with the importance of preserving our values as a nation and as an army." The current head of the CIA, David Petraeus, has said the "techniques that are in the Army Field Manual that lays out how we treat detainees, how we interrogate them. Those techniques work." Ayotte wants to give national security officials authority they haven't asked for to use techinques they don't need.

The second problem is that this would likely place the United States in violation of international laws prohibiting the use of torture. The Harvard Human Rights Journal has a lengthy discussion of the history and current state of laws regarding torture. Part of this is directly germane.

The United States has recently ratified the Convention Against Torture, but the campaign to accomplish this took nearly twenty years. The United States’ long refusal to ratify the Convention Against Torture is indicative of its general unwillingness to subscribe to the treaty-based regime concerned with international hion Act of 1991.

The holding of a case decided under the Alien Tort Claims Act spurred Congress to pass the Torture Victim Protection Act of 1991. This legislation was aimed at mitigating the effects of torture. Under the Act, a torturer acting under actual or apparent authority or color of law may be liable in a civil action for damages to the victim. Several limitations restrict the eligibility of claims under this Act: the claimant must exhaust all domestic remedies (in the original state) before invoking the Act; and claims are subject to a ten-year statute of limitations.

The Act uses the definition of torture established by the Convention Against Torture, a definition that addresses physical and mental suffering. The latter includes the actual infliction, or even threatened infliction, of severe pain, suffering, or mind-altering procedures. Alternatively, other procedures calculated to disrupt profoundly the senses or the personality, threats of imminent death, and threats to do any of these actions to someone else are also included in this definition. Courts have interpreted the Torture Victim Protection Act to expand rather than limit the Alien Tort Claim Act. Furthermore, courts have ruled that claims under these two acts are not barred by the Foreign Sovereign Immunities Act.

In addition to the 1991 Act, the Torture Victim Relief Act of 1998 and Torture Victim Relief Reauthorization Act of 1999 have appropriated more funding to further the campaign against torture and facilitate the rehabilitation of the victims. Though it does not necessarily counteract U.S. reluctance to join international legislation against torture, this domestic legislation does demonstrate some U.S. effort to provide legal remedies for torture victims.

Third, it does not work. I would be willing to consider setting aside my ethical concerns about hurting other people if I thought that doing so would be effective in safeguarding my country. For purposes of this discussion, opinions are easy to find but Live Science added more in 2007.

As a rule, torture is not an effective method of extracting information from prisoners, most experts agree.

"If anything useful came out these interrogations in Iraq, we would have
heard about it," said Alfred McCoy, a University of Wisconsin-Madison
historian and author of "A Question of Torture: CIA Interrogation, From
the Cold War to the War on Terror" (Holt Paperbacks, 2006).

Some good news. Yesterday Human Rights First reported that a group of forty retired admirals and generals sent two letters to the committee that is considering the defense bill and its amendments. They also provide the two letters. Regarding Sen. Ayotte's amendment, they wrote in part.

We worked closely with Senator McCain in 2005 to pass the Detainee Treatment Act which banned torture and limited lawful interrogation to techniques listed in the Army Field Manual. In 2008, we shared our insights with Presidential candidates from both parties that torture, as well as cruel, inhuman and degrading treatment, undermines our security at home and our moral standing in the world. Members of our group stood behind President Obama when he signed an Executive Order ending torture on his second day in office. The Executive Order mandated that all federal agencies comply with the military's high standards in the Army Field Manual.

Amendment 1068 to the defense bill would repeal the Executive Order banning torture, undermine a key aspect of the Defense Treatment Act by permitting some service members to engage in interrogation techniques outside the Army Field Manual, and would send interrogation tactics by other agencies underground. Amendment 1068 sets the stage for a return to Abu Ghraib.

They went on to write that torture is unreliable and counterproductive. In their second letter, they call for Congressional oversight of detention legislation. Both letters are at links from Human Rights First and are well worth taking the time to read in full.

I understand that some see limiting torture as a mistake because they do not understand that it is not an effective technique. I also understand that some politicians find it expedient as an election or reelection talking point. Patriotic Americans should rise above such limitations and do what is right for the United States, not turning to torture.